Introduction
The Supreme Court of Canada issued its judgment in Carter v Canada on Friday February 6, concluding that the Criminal Code provisions prohibiting doctor-assisted suicide are unconstitutional. The Court found that competent adults facing intolerable suffering from serious, irremediable medical conditions who are able to clearly express their desire to end their lives and to have the assistance of medical professionals in doing so, should be able to access a physician-assisted death. The Court noted that this does not require people to have exhausted all treatment options if these options are unacceptable to them.
In this case, both the trial judge and the Supreme Court of Canada recounted individual stories of grave and irremediable suffering to convey the importance of the need for physician participation in achieving an assisted death. For the people who desire this option for ending their lives, simply having the option available to them, even if never exercised, eases the burden of their suffering. Said one of the plaintiffs, Gloria Taylor:
My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives. I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by.
The Carter decision is significant in a number of ways. The Court’s decision is meaningful for those seeking the opportunity to die with dignity when they face a debilitating or degenerative condition and is an important change to criminal law in Canada, but it also contains other noteworthy legal holdings.
Stare Decisis
The Carter case came in the shadow of the 1993 Rodriguez case, in which the Supreme Court of Canada upheld the restrictions on assisted suicide as constitutional. The Court of Appeal’s decision in Carter rejected the trial judge’s findings because she was constrained by the earlier Rodriguez decision. However, the Supreme Court of Canada in Carter affirmed that the law of stare decisis is not a straight jacket and, following from its findings in Bedford v Canada, found that there are two situations (both at play here) where a trial judge may reconsider settled rulings of higher courts: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.
Section 7
The Court in Carter found that the prohibition on physician-assisted dying violated the rights to “life, liberty and security of the person” in section 7 of the Charter and that these infringements were not justified.
The laws violated the right to life by forcing some people to take their own lives before they are ready. For example, someone with a degenerative illness may feel forced to commit suicide while they are still physically able in anticipation of the pain and suffering they will later face, rather than at the point that they are actually ready to die.
The Court further found that the prohibition interferes with a person’s ability to make decisions concerning his or her own body and medical care and forces people to endure intolerable suffering. Of note for future cases, the Court affirmed that principles of dignity, autonomy and quality of life are better characterized as liberty and security rights than as part of the right to life.
The Court determined that the violations were not in accordance with “principles of fundamental justice” because the prohibition was over-inclusive: it catches people beyond the vulnerable individuals the law aims to protect, including those who have a competent and fully-informed wish to die.
Costs
This case was brought by a group of pro bono counsel representing the individual plaintiffs and the BC Civil Liberties Association. In upholding an award for special costs to the plaintiffs, the Court varied the test for awarding special costs to public interest plaintiffs beyond the usual costs, which cover only a small percentage of the actual cost of any case. This varies the BC Court of Appeal’s decision in Victoria (City) v. Adams, 2009 BCCA 563. Now, for a court to award special costs:
- The issues raised must involve matters of public interest that are truly exceptional. They must have “significant and widespread societal impact.”
- The litigant must show that in addition to having no economic interest in the proceedings, it would not have been possible to effectively pursue the litigation with private funding.
While it is encouraging to see special costs awarded, the new test may prove restrictive. The emphasis on “significant and widespread societal impact” suggests only those cases with a very broad impact warrant a special costs award. Small groups of people whose rights are violated may not meet this criterion and these are often the groups who have the most difficulty accessing the courts.
There are also questions about how litigants will be required to prove it was not possible to pursue the litigation in question with private funding. For example, will they have to show financial hardship or unsuccessful fundraising attempts?
Section 15
The Supreme Court of Canada declined to decide the merits of the s. 15(1) claim. Based on the plaintiffs’ arguments, the trial judge found that the provisions discriminate on the basis of disability, given that people physically able to end their own lives could do so without criminal consequence; whereas people too physically disabled to take the steps themselves and who wished to end their lives were prohibited from seeking assistance.
While the section 7 analysis arrives at the same result of striking down the laws, it is hard to imagine a clearer section 15 case. The Supreme Court of Canada did not interfere with the trial judge’s reasoning in this regard, so that aspect of the decision remains untouched.
Conclusion
The Court suspended its declaration of invalidity for 12 months to permit Parliament to respond with legislation should it choose to do so. The Court also recognized that a physician’s conscience and religious beliefs are relevant and said that nothing in the decision compels any physician to provide assistance in dying in contravention of those beliefs.
Gloria Taylor said in her evidence before the trial judge:
I do not want my life to end violently. I do not want my mode of death to be traumatic for my family members. I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.
The Carter plaintiffs’ victory is bittersweet: the case will not cure pain and suffering; but it will mean that people who anticipate pain and suffering at the end of life will not have to suffer needlessly, and may feel secure in knowing they may choose to die with dignity.